|Understanding the Constitution|
Understanding the Constitution – In general, the Constitution is a text or document which contains all the regulations that regulate the administration of the state in a country. Etymologically, the term constitution comes from the Latin “constitutio, constitute” means basic body structure, and from French “constituent” which means to form. In ancient times, the term in the constitution was used for the orders of the Roman emperors, namely, constitutions principal. Later, in Italy it was used to denote the constitution “Diritton Constitutionale“. While the Constitution in Dutch is called by the term “Grondwet“.
The term constitution has existed since the time of the Ancient Greeks, although in a material sense, because at that time there was no written constitution. This is clearly seen in understanding Aristotle which distinguishes between the terms Politia and Nomoi. Politiea can be interpreted as a constitution while nomoi is interpreted as a law. Politia contains supreme power than nomoi.
After that, Roman also has a constitution that we know as Lex Regia which contains an agreement on the transfer of people’s power to Caesar absolute power. In the middle ages also known a kind of constitution called Fundamentalist Leges which contains the rights and obligations of the people or rex and the king or regnum.
Constitution or Constitution or Verfassung different from the constitution or Grundgesetz. When we pay attention to Lex Regia or Fundamentalist Leges It will be seen that in the course of history, treaties between the governed and the government began to be written down. The purpose of texting is to make it easier for the parties to comply with their rights and obligations.
Constitution according to the meaning of the word means the basic structure of a political body called the state. The constitution is a description of the entire state administration system of a country in the form of a collection of regulations that function to form, regulate or govern the country. Some of the regulations are written as decisions of the competent body and some are unwritten in the form of conventions. In its development, the term constitution has two meanings, namely the broad sense of the constitution and the narrow sense of the constitution as below.
The following is an explanation of the experts regarding the meaning of the constitution:
- Richard S. Kay, Constitution is the implementation of the rules of law or the rule of law in the relationship between the community and the government. Constitutionalism creates a situation that can foster a sense of security because there are limits on the authority of the government that have been set in advance.
- Cart J. FriedrichThe constitution is a collection of activities created by and in the name of the people, but is subject to certain restrictions and hopes to ensure that the power needed for government is not abused by those who are tasked with governing.
- cf. StrongThe Constitution is a set of principles that regulate, determine the government and its powers, the rights of the governed, and also the relationship between the government and the governed.
- Chairul Anwar, Constitution is fundamental laws regarding government in a country with its fundamental values.
- Sri Soemantri, Constitution is a text that contains a state building and the joints of the government system.
- ECS WadeThe constitution is a text that explains the framework and main tasks of a government agency in a country and also determines the workings of the government agency.
- Lord James Brice, Constitution is the framework of society in the political world which is governed by law, where the law establishes permanently on various institutions that have recognized functions and rights.
- LJ Van Apeldoorn, He stated that the constitution is something that contains written and unwritten rules.
- Miriam BudiarjoThe Constitution is a charter that states the ideals of a nation and the basic organization of a nation. It contains various basic and main regulations relating to the distribution of power, the ideals of the state, state ideology, laws, sovereignty over political, economic and other issues.
- AAH Struijcken, the Constitution is the same as the Constitution, only contains the outlines and principles of state organization.
- Herman Heller, Divide the constitution into three senses, namely:
- The constitution written in a text is the highest law and applies in a country.
- The constitution is a unified rule of life in a society, where the constitution contains a juridical meaning.
- The constitution is a mirror of political life as a reality in a society. In this case the constitution has sociological and political meanings.
- KC Wheare, states that the constitution is the entire administrative system in the form of a collection of regulations that regulate, form or govern in a country.
- F. LassalleThere are two meanings put forward by him, namely:
- The juridical understanding of the constitution is a text that contains all state buildings and the joints of government in a country.
- Sociologically and politically, the constitution is a synthesis of the factors of real power in a society. The constitution here describes the relationship between the powers that exist in a country such as the cabinet, parliament, king, political parties.
- Ni’matul Huda, The constitution consists of written and unwritten constitutions. The limitations are:
- Overview of state institutions,
- The picture concerning human rights,
- A set of rules that limit power to the ruler,
- Documents regarding the division of tasks as well as officers from a political system in a country.
- James BryceThe Constitution is a state framework that is coordinated by law. Which law stipulates:
- Functions of all fittings,
- rights that have been established by the government,
- Arrangements for the establishment of various permanent institutions.
- Koernimanto Soetopawiro, the Constitution is to determine jointly. Which is taken from the Latin cisme which means together, and statute which means to make something stand up.
- Prajudi AtmosudirjoThe constitution is the result of the history or process of the struggle of the nation concerned, what is the history of its struggle, such is the constitution.
- Carl SchmittThere are four meanings that he put forward, namely:
- In an absolute sense: where the constitution is a factor of integration, the form of the state, a closed system of every highest legal norm in a country, and as a unified organization.
- Relative: constitution as a demand for the bourgeoisie so that their rights can be guaranteed in the state and the constitution in a formal sense where the constitution can be in the form of written and material things that look at the constitution in terms of content.
- Positive: the constitution as the highest political decision so that it can change the order of life in the country.
- Ideal: where the constitution contains guarantees for human rights and their protection.
- Definition of the constitution according to Maurice Haurio, an expert in political law, (reviewing from institutions/institutions), that the constitution is the embodiment of institutions, therefore Haurio’s teaching is called institutionalism. According to Hario, the constitution is an institution that is the embodiment of ideas that exist in society in the form of laws that live in society. The incarnation of this constitution is well based on the reality of society, some of which are normative elements and partly there are lawmakers who will later become legal institutions. Hario also said that the purpose of the constitution is to maintain a balance between:
- order (order), or public order,
- Power (hit gezag), who defend the order/society,
- Freedom (de vrijheid) namely personal freedom and human freedom.
The constitution in an absolute sense means that the constitution in addition to containing the form of the state, integration factors and basic norms/government structures, also covers all the main things found in every country in general.
Then the first main understanding is divided into 4 sub-understandings, namely:
- The constitution describes the relationship between the real power factors in a country, namely the relationship between the king, parliament, cabinet, parties, politics, pressure groups, etc., and includes all legal structures and all existing organizations in the country. So it is the same as the understanding of the constitution according to Lassalle’s understanding.
- The constitution contains forma formarum, namely the form that determines the other forms. In fact, it has been around since the Greek state experts have considered that the form of the state is very important for matters of state.
- Constitution as an integration factor
- The constitution is a norm der norm, namely the basic norm that is the source for other applicable norms.
There are several terms of the constitution, namely:
- The constitution in a material sense is concerned with its content, which consists of very important points of the structure and organization of the state,
- Constitution in the formal sense is attention to procedure, its formation must be special compared to the formation of other laws,
- The constitution in the written sense means that the constitution is specifically written to make it easier for the parties to know it,
- The constitution in the sense of being the highest law is both the formation and amendment through special procedures and also it is the highest basis of other legislation in force in the country.
- (Moh. Kusnardi and Harmaili Ibrahim 1976: 65).
- State Science by Prof. H. Daud Busroh, SH was published in Jakarta by the publisher Bumi Aksara in 2009, the sixth edition.